Articles Posted in US Court of Appeals for the Fourth Circuit

The Eleventh Circuit granted a petition for review of the BIA's final order denying her all relief from deportation. The BIA upheld the IJ's finding that petitioner, although persecuted because of her membership in a particular social group, had failed to establish that the Salvadoran government was unwilling or unable to protect her from this persecution. The court held, however, that the BIA disregarded and distorted significant portions of the record in reaching this conclusion. In this case, the agency adjudicators repeatedly failed to offer specific, cogent reasons for disregarding the concededly credible, significant, and unrebutted evidence that petitioner provided. Furthermore, the government's reasons were unpersuasive. View "Orellana v. Barr" on Justia Law

Plaintiffs alleged that the government's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy (and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth Amendment, as well as the Administrative Procedure Act (APA) and common law principles of estoppel.
The Fourth Circuit agreed with the district court that plaintiffs' challenges were subject to judicial review and that the government's decision to rescind DACA did not require notice and comment under the APA. However, the court held that the decision violated the APA because—on the administrative record before the court—it was not adequately explained and thus was arbitrary and capricious. The court also held that the district court erred in ordering the government to comply with its policies promulgated in 2012 on the use of information provided by DACA applicants and enjoining it from altering those policies. The court declined, under the doctrine of constitutional avoidance, to decide whether plaintiffs' Fifth Amendment rights were violated. The court also declined to address plaintiffs' remaining arguments. Accordingly, the court affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded. View "Casa De Maryland v. DHS" on Justia Law

The Fourth Circuit denied a petition for review of the BIA's decision that petitioner was deportable for committing an aggravated felony within the meaning of the Immigration and Nationality Act. The court held that petitioner's convictions for taking custodial indecent liberties with a child under Virginia Code 18.2-370.1(A) qualified categorically as an aggravated felony of sexual abuse of a minor under the INA. View "Thompson v. Barr" on Justia Law

After plaintiffs were arrested and detained by ICE under 8 U.S.C. 1226(a), pending removal for being in the United States without inspection or admission, they filed suit against ICE and DHS, challenging their transfer or anticipated transfer from ICE's detention facility to an out of state facility. Plaintiffs alleged a violation of their substantive due process right to family unity and procedural due process right to notice and an opportunity to be heard, because such transfers separated them from their children and made it impossible for children to have access to their parents or to visit them.
The Fourth Circuit affirmed the district court's grant of the government's motion to dismiss and held that plaintiffs did not have a due process right to family unity in the context of immigration detention pending removal. Furthermore, the court did not have the authority to create a new substantive due process right in view of Supreme Court decisions cautioning courts from innovating in this area. Likewise, the court held that, because plaintiffs right to family unity did not exist, their procedural due process claim failed. View "Reyna v. Hott" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's denial of petitioner and her son's application for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The court vacated the BIA's order with respect to the CAT claim and remanded, holding that the BIA failed to fully consider the evidence in support of petitioner's CAT claim. In this case, petitioner and her son were threatened by members of a local street gang that, if they did not leave their native country of El Salvador within 24 hours, they would be murdered. Petitioner and her son decided to come to the United States after local law enforcement refused to provide any form of aid. The court held that the BIA's wholesale failure to fully consider the country conditions evidence petitioner presented to show government acquiescence in her torture constituted reversible error. View "Cabrera Vasquez v. Barr" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's determination that petitioner failed to demonstrate the requisite governmental acquiescence for relief under the Convention Against Torture (CAT) and that he had not derived citizenship under the Child Citizenship Act of 2000 (CCA) because he was not in the "physical custody" of his father during the requisite time period.
The court held that whether the government would acquiesce to torture under the CAT is a mixed question of fact and law. The court also held that whether petitioner was in the "physical custody" of his father was a mixed question of fact and law. In this case, the BIA applied the wrong standard of review to both determinations by applying the clear error, rather than the de novo, standard of review. View "Duncan v. Barr" on Justia Law

The risks of torture from all sources should be combined when determining whether a Convention Against Torture (CAT) applicant is more likely than not to be tortured in a particular country. The Fourth Circuit granted a petition for review of the BIA's final order affirming the denial of petitioner's claim for protection under CAT. The court agreed with petitioner that the BIA made a legal error when it denied him CAT relief because it failed to aggregate his risk of torture from all three of the entities that he fears: gangs, vigilante groups, and the police.
The court also agreed with petitioner that the BIA and IJ erred by (1) failing to meaningfully engage with the live testimony and over 300 pages of documentary evidence that he originally produced in support of his claim, and (2) failing to meaningfully consider the additional evidence that he submitted on remand about the risk of torture that he faced in El Salvador. Therefore, the court held that the BIA and IJ failed to provide a cogent, articulable basis for its determination that petitioner's evidence was insufficient. Accordingly, the court vacated the BIA's judgment and remanded for further proceedings. View "Rodriguez-Arias v. Whitaker" on Justia Law

The Fourth Circuit granted a petition for review of an order of removal, holding that the BIA applied the wrong standard of review. The court held that, whether petitioner established that the government would acquiesce in his torture under 8 C.F.R. 1208.16(c)(2) was a mixed question of law and fact, and the IJ's determination that the evidence did not meet the relevant standard was a legal judgment subject to de novo review by the Board. Accordingly, the court remanded for the Board to review the IJ's determination under the proper standard. View "Cruz-Quintanilla v. Whitaker" on Justia Law

The temporary, ex parte emergency order presented by plaintiff did not qualify as a predicate state court custody order for the special immigrant juvenile application. The Fourth Circuit affirmed the district court's judgment and held that it properly concluded that the USCIS did not impose an ultra vires requirement for permanent custody orders within the SIJ application process. Therefore, the agency did not act arbitrarily, capriciously or contrary to law, or abuse its discretion in determining that plaintiff failed to present a qualifying predicate order in support of his SIJ petition. Finally, the court held that the Full Faith and Credit Act was inapplicable under the facts presented in this case. View "Perez v. Cissna" on Justia Law

Petitioner, a citizen and native of El Salvador, challenged the BIA's dismissal of his appeal of the IJ's denial of his application for withholding of removal and protection under the Convention Against Torture (CAT). The court assumed, without deciding, that petitioner was a member of a particular social group comprised of his disabled father's immediate family members and that he suffered past persecution in El Salvador. Even with that assumption, the court held that petitioner failed to establish the requisite nexus between any persecution he suffered and his relation to his disabled father. Accordingly, the court denied the petition for review. View "Cortez-Mendez v. Whitaker" on Justia Law